Two to three years ago, advice to clients would have been that anything used or even remotely associated with marijuana, hemp, and CBD1 was doomed to be seized by U.S. Customs and Border Protection (CBP). It would then be classified as “drug paraphernalia” and deemed illegal to import or export, it would be seized, and the importer or exporter would most likely be issued a civil penalty (at least) for the trouble. However, more recent events and trends have cast a shadow of doubt over this advice, requiring a close analysis of the laws and regulations governing the import and export of these goods. As such, it is time for CBP to modernize its approach and views toward CBD products, hemp, and drug paraphernalia.
June 22, 2022 Feature
Importing and Exporting CBD Products, Hemp Products, and Drug Paraphernalia
James Hurst
The Role of CBP
CBP is the country’s largest federal law enforcement agency, with a nationwide presence at all U.S. sea, air, and land ports of entry. CBP controls the entry of goods into and out of the U.S., enforcing all U.S. customs laws in the process.
CBP also enforces the laws and regulations of all other federal government agencies as they apply to imports and exports, such as the Drug Enforcement Administration (DEA), the Food and Drug Administration (FDA), and the Department of Agriculture (USDA). In customs parlance, these other agencies are referred to as “partner government agencies” (PGAs).2 In cases where CBP is enforcing the law of PGAs, CBP’s role is normally limited to implementing decisions made by those other government agencies. For example, CBP does not decide whether imported CBD oil violates the Clean Food and Drug Act but instead would refer the question to the FDA. From that point forward, the importer would negotiate primarily with the FDA to establish the admissibility of the product under FDA law and regulations. Once the FDA makes a final decision to admit, seize, or exclude the goods, it would communicate that decision to CBP to implement.
The Farm Bill of 2018: Hemp No Longer a Controlled Substance
The primary change to the law came when the Farm Bill of 2018 modified the Controlled Substances Act (CSA) to exclude hemp from the definition of “marijuana,” stating:
(A) Subject to subparagraph (B), the term “marihuana” means all parts of the plant Cannabis sativa L., whether growing or not; the seeds thereof; the resin extracted from any part of such plant; and every compound, manufacture, salt, derivative, mixture, or preparation of such plant, its seeds or resin.
(B) The term “marihuana” does not include—(i) hemp, as defined in section 1639o of title 7; or (ii) the mature stalks of such plant, fiber produced from such stalks, oil or cake made from the seeds of such plant, any other compound, manufacture, salt, derivative, mixture, or preparation of such mature stalks (except the resin extracted therefrom), fiber, oil, or cake, or the sterilized seed of such plant which is incapable of germination.3
The Farm Bill of 2018 went on to specify the definition of “hemp” as follows:
The term “hemp” means the plant Cannabis sativa L. and any part of that plant, including the seeds thereof and all derivatives, extracts, cannabinoids, isomers, acids, salts, and salts of isomers, whether growing or not, with a delta-9 tetrahydrocannabinol [THC] concentration of not more than 0.3 percent on a dry weight basis.4
Based on these definitions, products derived from the plant Cannabis sativa L. with a THC concentration of not more than 0.3 percent on a dry weight basis are, for the purposes of the CSA, hemp—not marijuana—and are not a controlled substance.5 This definition of “hemp” includes most CBD products and smokable forms of hemp.
The Differing Intensity of Enforcement between Interstate and International Commerce
While this may come as a surprise to many people currently engaged in the domestic marijuana and hemp products industry, transporting drug paraphernalia either interstate or internationally is illegal under the CSA. However, the enforcement regime is drastically different between the two cases, and, as a result, international shipments of hemp products and drug paraphernalia are far riskier.
As an example, law enforcement does not regularly stop trucks and shipments between Texas and Colorado to search for contraband; these shipments are largely uncontrolled. Conversely, all import shipments require a detailed customs declaration. Likewise, all export shipments require a basic manifest declaration, and shipments over $2,500 require a more detailed declaration. While drug paraphernalia possession in most states will likely be a misdemeanor-level crime at most, making a false statement on a customs declaration to import or export CBD products, hemp products, or drug paraphernalia is potentially a federal felony for smuggling.6
Furthermore, CBP officers can search import and export shipments at will without probable cause.7 In contrast, domestic law enforcement requires probable cause to search domestic interstate shipments. This difference in the ability of law enforcement to search international shipments versus their domestic counterparts dramatically alters the legal landscape associated with sales of drug paraphernalia.
What Constitutes “Drug Paraphernalia”?
When considering the importation and exportation of drug paraphernalia, the defining provision is 21 U.S.C. § 863(a), which states that “[i]t is unlawful for any person—(1) to sell or offer for sale drug paraphernalia; (2) to use the mails or any other facility of interstate commerce to transport drug paraphernalia; or (3) to import or export drug paraphernalia.”8
The CSA defines “drug paraphernalia” as follows:
The term “drug paraphernalia” means any equipment, product, or material of any kind which is primarily intended or designed for use in manufacturing, compounding, converting, concealing, producing, processing, preparing, injecting, ingesting, inhaling, or otherwise introducing into the human body a controlled substance, possession of which is unlawful under this subchapter. It includes items primarily intended or designed for use in ingesting, inhaling, or otherwise introducing marijuana, cocaine, hashish, hashish oil, PCP, methamphetamine, or amphetamines into the human body, such as—
(1) metal, wooden, acrylic, glass, stone, plastic, or ceramic pipes with or without screens, permanent screens, hashish heads, or punctured metal bowls;
(2) water pipes;
(3) carburetion tubes and devices;
(4) smoking and carburetion masks;
(5) roach clips: meaning objects used to hold burning material, such as a marihuana cigarette, that has become too small or too short to be held in the hand;
(6) miniature spoons with level capacities of one-tenth cubic centimeter or less;
(7) chamber pipes;
(8) carburetor pipes;
(9) electric pipes;
(10) air-driven pipes;
(11) chillums;
(12) bongs;
(13) ice pipes or chillers;
(14) wired cigarette papers; or
(15) cocaine freebase kits.9
The key language in determining whether a good constitutes drug paraphernalia is “primarily intended or designed for use in . . . introducing into the human body a controlled substance.” This language means that status as paraphernalia is not necessarily determined by an inherent trait of the good itself but rather by the primary intended or designed use of the good, which goes to the purpose of the shipper and the recipient. Therefore, some goods can reasonably be construed to have dual uses—some legal versus some illegal—when determining if something is drug paraphernalia. In making this determination, CBP has traditionally analyzed the terms “intended . . . for use” and “designed for use” as two separate tests. Given the changes in the definition of “hemp,” determining whether something is primarily intended for use with or designed for ingesting a controlled substance is more difficult than ever.
In interpreting the language of the CSA regarding the primary intended use of the item, the U.S. Supreme Court held that “primarily intended . . . for use” was to be understood objectively and that this referred generally to an item’s likely use.10 The Court held that this definition looked beyond items likely to be used with drugs by virtue of objective features. The likely use by customers generally, and not use by a particular customer, can render a dual-use item drug paraphernalia. CBP has held that it is not enough to look only to individual defendants to determine a good’s primary intended use: “[I]tems having possible multiple uses may constitute drug paraphernalia for purposes of 21 U.S.C. 863 if the likely use by customers of the seller of the items is for use with illegal drugs.”11
Similarly, when interpreting the language of the CSA regarding the primary designed use, the test is again objective. CBP cites to language from the Supreme Court, which held that “[a]n item is ‘designed for use’ . . . if it ‘is principally used with illegal drugs by virtue of its objective features, i.e., features designed by the manufacturer.’ . . . The objective characteristics of some items establish that they are designed specifically for use with controlled substances.”12
For instance, a grow light system may be a simple fluorescent or LED light with some type of control system with no indication that the primary intended use is as drug paraphernalia. However, if the buyer and seller discuss that the light system will be used to grow marijuana or other illicit substances, or if the lights are specifically marketed and sold as part of a system designed to grow marijuana, then the primary intended use is clearer, and the goods will be classified as drug paraphernalia.
CBP Investigations
When enforcing drug paraphernalia laws regarding imports and exports, if CBP officers discover goods that they suspect of being drug paraphernalia, the officers then refer those goods to the Fines, Penalties, and Forfeitures (FP&F) office at the local port of entry for seizure. The local FP&F office then issues a seizure notice to the importer or exporter. The importer or exporter can then submit a petition for relief to administratively challenge CBP to effect release of the goods. A traditional defense by many petitioners will claim that pipes are used to smoke tobacco, which is legal and would make them not subject to seizure if true.
In cases such as these, CBP will typically review the petitioner’s website to determine if there is any incriminating evidence of intended drug use, such as pictures of marijuana leaves or Bob Marley smoking a joint or a suspicious URL like www.420hightimes.net. If such evidence is found, CBP will then conclude that the primary intended use of the goods is illegal drug use, deny the petition for relief, and move for forfeiture of the goods. Moreover, CBP has been known to set up sting operations by using false buyers, including past instances where it did so for innocuous products, such as honey or tires, that were being imported in violation of U.S. customs laws.
CBP issues ruling letters under 19 C.F.R. part 177 for questions of admissibility, including what constitutes drug paraphernalia in both seizure and enforcement contexts, as well as advance notices. An importer, alternatively, may simply address the issue at the time of entry.
Recently, CBP held that vaping equipment imported to smoke marijuana was drug paraphernalia, even if the goods were to be sold in a state where marijuana is legal locally (e.g., Washington State).13 CBP’s rulings state that it will only consider federal law when reviewing shipments, holding that for international shipments, federal law controls because of the supremacy clause of the U.S. Constitution.14 Similarly, CBP recently held that a “collapsible water pipe” constituted drug paraphernalia within the meaning of 21 U.S.C. § 863 for similar reasons.15
Notably, no rulings exist regarding the sale of items for use with hemp products. Because hemp products do not constitute controlled substances, the primary intended use of any related products appears to be outside the CSA’s purview and definition of “drug paraphernalia.” For example, in the case of a pipe sold for use with a smokable hemp product, the primary intended use is for smoking a non-CSA product, and thus the pipe would be excluded from the definition of “drug paraphernalia.”
However, the distinction between smokable hemp and smokable marijuana is a purely legal one because both come from the same plant, Cannabis sativa L. The only real distinction between the two is whether the THC concentration is above or below 0.3 percent on a dry weight basis. The level of THC present in cannabis cannot be distinguished by casual inspection, and the two products can only be distinguished by a chemical analysis. Furthermore, the smoking characteristics of hemp and marijuana are also indistinguishable, so the same pipe could be used for both products.
This issue could be even more complicated given that numerous retail stores now exist devoted to selling hemp products, including smokable hemp, which are fully legal under federal law and under the laws of most states. Assuming that the retailer is only selling hemp and is not also selling marijuana, it is reasonable to presume that a buyer of a pipe from such a store would intend to smoke hemp with it. To be sure, that same pipe also could be used to smoke marijuana, but the test enunciated by CBP for identifying drug paraphernalia is “if the likely use by customers of the seller of the items is for use with illegal drugs.”
A fantastic illustration of current CBP import enforcement is the ongoing case Eteros Technologies USA, Inc. v. United States in the U.S. Court of International Trade.16 In Eteros, CBP excluded from importation harvesting equipment that was intended primarily to harvest hemp. In doing so, CBP concluded that the goods constituted drug paraphernalia because the user guide stated that the harvesting equipment was “the world’s best cannabis and hemp trimmer.”17 Because the equipment’s user guide cited to cannabis, “identif[ying] [a product] under the Controlled Substances Act,” CBP excluded the equipment from importation.18
However, Eteros Technologies is relying upon statutory language stating that “any person authorized by local, State, or Federal law to manufacture, possess, or distribute such items” is exempted from the prohibition on drug paraphernalia trade.19 Specifically, Eteros Technologies argues that because its primary and intended use of the product is to harvest hemp, which is federally legal, it is therefore authorized by federal law to possess the harvester. Whether this argument holds up will be seen in the forthcoming months when the court releases its decision.
Importation and Exportation
Importing hemp products. The CSA may not be a roadblock for importing CBD and hemp products moving forward. Hemp products, including CBD products, are no longer scheduled under the CSA, so the importing of these products is not prohibited under that statute.
However, the hemp products may be regulated under FDA law, which can make a product inadmissible for importation. For example, the FDA website states that CBD products may not be sold as dietary supplements.20 Regarding smokable hemp products, while the FDA has shown interest in regulating them in public comments, at this time the FDA has not done so.
Exporting hemp products and paraphernalia. Again, because CBD and hemp products are not considered controlled substances, exporting them is not necessarily prohibited under the CSA. However, the U.S. is a party to the United Nations Convention on Psychotropic Substances, requiring the U.S. to prohibit the exportation of controlled substances. While there are no rulings on point, it would follow that exporting hemp products would be legal if these products are not controlled substances in the country to which they are being exported. How exactly to demonstrate that legality in a foreign country is another question altogether, however. Would CBP require a ruling from a foreign customs service? Would opinion of counsel suffice? Will CBP issue a list to which its officers can refer? CBP headquarters has not yet issued guidance on this subject.
As for CBP’s export enforcement, exportation of drug paraphernalia equipment is governed by 21 U.S.C. § 843(a)(7), which states that it is illegal for any person “to manufacture, distribute, export, or import” any equipment or chemicals that they know, or may reasonably suspect, “will be used to manufacture a controlled substance.”21 Additionally, this statute prohibits the export of any of the same equipment or chemicals to countries where it is also illegal to possess, manufacture, or distribute those goods.
The question of regulating paraphernalia is a little more complex than regulating the hemp products themselves because, as was previously discussed, paraphernalia can be “dual use” in nature. Again, the question would appear to turn on whether the goods being exported are legal in the country of destination. For example, an exporter would need to show that an LED grow light system was being sold to a foreign buyer who will use it to grow hemp or marijuana in a country where growing hemp or marijuana is legal. How an exporter would establish all of this is not entirely clear under current CBP guidance.
In addition to the CSA, an entirely separate set of laws controls the exportation of all products from the U.S., which would also apply to hemp products and paraphernalia. These laws fall into three primary categories:
- Controls on exporting specific articles: The Department of Commerce through the Bureau of Industry and Security (BIS) controls the exportation of most dual-use items from the U.S. It is not clear whether either hemp products or most drug paraphernalia would fall within BIS jurisdiction, and the process of making that determination is not simple.
- Controls on exporting to specific people: Through multiple agencies, the U.S. government maintains several lists of individual parties to which U.S. citizens cannot export items, including many known drug traffickers. All buyers should be screened to confirm that they are not on any of these lists.
- Controls on exporting to specific countries: The Department of the Treasury through the Office of Foreign Assets Control (OFAC) controls the exportation of products to various countries to varying degrees. Exportations to Cuba, North Korea, and Iran are almost completely banned, for example.
Complying with each of the agencies’ regulations of exportations would require a separate article each, so advice from competent counsel is crucial.
Conclusion
Changes in the legal definitions of marijuana and hemp under federal law mean that opportunities to introduce hemp, CBD, and associated paraphernalia into international and interstate commerce are now possible. However, the greater scrutiny applied by CBP to international shipments makes them inherently riskier than interstate shipments despite the fact that both are prohibited by the CSA. Prior to engaging in importation or exportation of these products, it is advisable to closely analyze the law and consider seeking a ruling.
Notes
1. CBD, or cannabidiol, is the second most active ingredient in cannabis or marijuana.
2. “Partner government agencies” is a relatively recent term that replaced “other government agencies” (OGAs).
3. 21 U.S.C. § 802(16) (emphasis added).
4. 7 U.S.C. § 1639o(1).
5. Id.
6. In reality, import shipments are scrutinized much more intensely than most export shipments due to the inherent impact that those shipments might have domestically.
7. See United States v. Camacho, 368 F.3d 1182 (9th Cir. 2004); see also United States v. Ramsey, 431 U.S. 606 (1977).
8. 21 U.S.C. § 863(a).
9. Id. § 863(d) (emphases added) (footnote omitted).
10. Posters ’N’ Things, Ltd. v. United States, 511 U.S. 513, 521 (1994).
11. See U.S. Customs & Border Prot., Customs Headquarters Ruling No. H306125, 2020 U.S. Customs HQ LEXIS 93, at *20–21 (Aug. 5, 2020) (citing Posters ’N’ Things, 511 U.S. at 521).
12. Id. (citing Village of Hoffman Estates v. Flipside, Hoffman Ests., Inc., 455 U.S. 489 (1982)).
13. Id.
14. Id.
15. See U.S. Customs & Border Prot., Customs Headquarters Ruling No. H308808, 2020 Customs HQ LEXIS 57 (Apr. 22, 2020) (holding that the “collapsible water pipe” constituted drug paraphernalia as its primary intended use was for marijuana consumption).
16. No. 1:21-cv-00287 (Ct. Int’l Trade filed June 11, 2021).
17. Complaint at 9, Eteros, No. 1:21-cv-00287.
18. Id.
19. 21 U.S.C. § 863(f)(1).
20. FDA Regulation of Cannabis and Cannabis-Derived Products, Including Cannabidiol (CBD), U.S. Food & Drug Admin. (Jan. 22, 2021), https://www.fda.gov/news-events/public-health-focus/fda-regulation-cannabis-and-cannabis-derived-products-including-cannabidiol-cbd#legaltosell (“9. Can THC or CBD products be sold as dietary supplements? A. No. Based on available evidence, FDA has concluded that THC and CBD products are excluded from the dietary supplement definition under section 201(ff)(3)(B) of the FD&C Act [21 U.S.C. § 321(ff)(3)(B)].”).
21. 21 U.S.C. § 843(a)(7).